Debasish Kar Gupta, J.@mdashThis writ application is filed by the Petitioners for issuing a writ in the nature of Quo Warranto against the Respondent No. 6 for quashing his appointment in the post of Registrar, Bengal Engineering and Science University, Sibpur.
2. Brief history of the case is as follows:
By virtue of an advertisement No. RA 7607 dated May 8, 2007 published in "Ganasakti" a daily vernacular, applications were invited in prescribed form for the post of Registrar, amongst other posts, from the eligible candidates having essential qualifications as follows:
(A) Uniformly good academic record with a minimum of B+ Master''sdegree or its equivalent grade at the master''s level.
(B) At least 15 years experience in Academic Institutions like University or in an Institute of Higher Learning of which 5 years must be in high level administration in a University or in anInstitute of Postgraduate study in the capacity of Deputy Registrar or an equivalent post OR Comparable experience in research organizations/industiral establishments.
(c) Age not less than 40 years. Relax bale in case of exceptionally qualified candidates (as on the date of advertisement).
4. The last date of submitting applications was fixed on May 31, 2007. The advertisement further contained that the choice of the selecting authority need not be confined to those who apply.
5. The Respondent university constituted a selection committee for conducting the selection process. Eligible candidates appeared before the selection committee in interview on September 6, 2007. The selection committee recommended name of the Respondent No. 6 for appointment to the post of Registrar of the Respondent university. And the same was placed before the board of management of the Respondent university for consideration in its 39th meeting held on November 30, 2007. The Board of Management of the Respondent university accepted the above recommendation. A letter appointment dated December 3, 2007 was issued in favour of the Petitioner to appoint him to the post of Registrar of the Respondent university. The Respondent No. 6 assumed the charges attached to the office of the Registrar of the Respondent university on and from January 15, 2008.
6. It is submitted by Mr. Arunava Ghosh, learned advocate appearing for the Petitioners, that the post in question was a "public office". The essential qualifications for the post of Registrar in the advertisement under reference were not prescribed in accordance with the provisions the first bye-laws, 1993-94 of the Respondent university. In accordance with the provisions of Clause 2(iiia), at least 15 years'' experience in the academic institutions like university or in an institute of higher learning of which five years must be in high level administration in a university or in an institute of post graduate study was one of the essential qualifications for appointment as registrar of the Respondent university. It is further submitted by Mr. Ghosh that in accordance with the provisions of Sub-section(2) of Section 1 of the Bengal Engineering and Science University Act, Sibpur, 2004(hereinafter referred to as the said Act, 2004), the provisions of Section 53 came into force with effect from September 2, 2004. Under the provisions of Sub-section (7) of Section 53 of the said Act notwithstanding repeal of bye-laws of the Bengal Engineering College, a deemed university, until the appointed day, all the authorities and bodies referred to in the bye-laws should continue to exercise all powers. According to him, the essential qualifications prescribed for the post of Registrar of the Respondent university prescribed in first bye-laws, 1993-94 of the Respondent university were in force at the time of appointment of the Respondent No. 6 and those provisions were mandatory having statutory sanction in the light of the above provisions of the said Act, 2004. He further submits that the Respondent No. 6 did not possess essential qualifications of at least 15 years'' experience in academic institutions like university or in an institute of higher learning of which five years must be in high level administration in a university or in an institute of post graduate studies. The attention of this Court is also drawn towards the release order dated January 15, 2008 to show that the Respondent No. 6 had experience for the post of Valuation Officer, Calcutta Improvement Trust.
7. It is also submitted by Mr. Ghosh that though no applications was submitted by the Respondent No. 6 within the time prescribed in the advertisement, his case was considered for appointment by the Respondent university.
8. Mr. Ghosh relies upon the decisions of
9. Reliance is also place on the decisions of
10. On the other hand it is submitted by Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing for the Respondent university, that the selection process for appointment of the Registrar of the Respondent university started from the date of advertisement on May 8, 2007 and the same concluded on the date of joining of the Respondent No. 6 to that post on January 15, 2008. But the Petitioner association got registration subsequently, i.e. on September 12, 2008. None of the members of the Petitioner association participated in the selection process under reference. So none of them was personally interested for the post. No objection was raised before conclusion of the selection process under reference. Therefore, the writ application is not maintainable at the instance of the Petitioners.
12. It is submitted by him that no writ of Quo Warranto could be issued in the absence of violation of any statutory recruitment rules. According to him, there were no statutory recruitment rules at the material point of time. Nor the first bye-laws, 1993-94 of the Respondent university could be said to be statutory recruitment rules.
13 .It is further submitted by him that the board of management was the authority to appoint the Respondent No. 6 to the post of Registrar of the Respondent university consisting of three teachers'' representatives, amongst other members. It is also submitted by him that a draft recruitment rules had been sent to the State Government on September 20, 2006 for its approval. The Respondent No. 6 was appointed to the post under reference on December 3, 2007. Subsequently, the above recruitment rules were approved by the State Government on September 30, 2008 and the appointed day of the same was October 1, 2008. According to him, the appointment under reference was made on the basis of the above draft recruitment rules which had been pending before the State Government for approval at the material point of time and which came into force subsequently getting approval of the State Government. Therefore, the appointment of Respondent No. 6 in the post under reference was made following a draft rules which was permissible on the basis of settled principles of law.
14. It is also submitted by Mr. Bhattacharya that in accordance with the advertisement, the choice of selecting authority need not be confined to those who had applied. Therefore, no objecting could be raised on the ground that the Respondent No. 6 did not submit his application within the last date of submitting such application.
15. Relying upon the decision of
16. Mr. Kallol Bose, learned Advocate appearing on behalf of the Respondent No. 6, submits that the provisions of the first bye-laws 1993-94 of the Respondent university are not statutory provisions. Therefore, appointment of the Respondent No. 6 complying with the provisions of the above bye-laws in breach cannot make such appointment null and void. According to Mr. Bose recruitment rules had been prepared under the provisions of Sub-Section 4 of Section 53 of the said Act, 2004 and the same was sent for Government approval on September 20, 2006. The appointment of the Respondent No. 6 was made on December 3, 2007 the above recruitment rules were approved by the Government on September 30, 2008. October 1, 2008 was the appointed day of the above rules. According to him such an action is sustainable in law.
17. I have heard the learned Counsels appearing for the respective parties at length and I have given my anxious consideration to the facts and circumstances of this case.
18. Writ of Quo Warranto is a proceeding which affords a judicial remedy by which any person who held an independent substantive public office or franchise or liberty can be called upon to show by what right he holds such an office, franchise or liberty, so that after determining his title, in the event of finding is that he has no title, he may be ousts form that office by a judicial order.
19. As Halsbury observed in Halsbury''s law of England(3rd Edn) Vol-2 at page 145:
An information in the nature of Quo Warranto took the steps of the obsolete writ of Quo Warranto which lay against a person who claim or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim in order that the right to the office or franchise may be determined.
20. It would, thus, be the seen before a person can effectively claim a writ of Quo Warranto, he has satisfed the court that the office in question is a public office and is held by usurper without legal authority, and that inevitable would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.
21. The first question which falls for consideration at the outset is the locus standi of a person, which includes a juristic person, to file a writ petition praying for a writ in the nature of Quo Warranto. It is the general rule that the right under Article 226 of the constitution can be enforced only by an aggrieved person. But the above general rule is subject to a few exceptions. In case the writ prayed for is for Quo Warranto, he cannot be non-suited on the ground of his not having the locus standi. Reference may be made to the decision of
38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where thewrit prayed for is for habeas corpus or Quo Warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the Petitioner which isalleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely onhypertechnical grounds. If a person approaching the court cansatisfy that the impugned action is likely to adversely affect hisright which is shown to be having source in some statutory provision,the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his nothaving the locus standi.
(Emphasis supplied)
22. Before entering into merits of this case, this Court is to decide whether delay defeats equity where the writ prayed for is Quo Warranto. Indisputably, in this case the Petitioners'' association got registration after the appointment of the Respondent No. 6. Admittedly, none of the members of that association was a person interested to the post under reference. As discussed hereinabove, writ of Quo Warranto can be issued against the appointment which is contrary to the statutory rules but is it is not the court to embark upon an investigation of its own to ascertain the qualification of the person concerned. Therefore, while examining the authority of a person to hold a public office, the court is not concerned with technical grounds for the purpose of preventing continuance of usurpation of office or perpetuation of illegality in an appropriate case. Reference may be made to the decision of N. Kannadasan V. Ajoy Khose, reported in (2009) 7 SCC 1 and the relevant portions of the above decision are quoted below:
134. Indisputably, a writ of Quo Warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat and R. K. Jain v. Union of India. (See also MorModern Coop. Transport Society Ltd. v. Govt. of Haryana). In Duryodhan Sahu(Dr.) V. Jitendra Kumar Mishra, this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned.(Seealso Arun Singh v. State of Bihar.) We may further more notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurption of office or perpetuation of an illegality.
(Emphasis supplied)
23. Now, the question which falls for consideration of this Court is this whether the Respondent No. 6 was holding a "public office"? The Respondent No. 6 was holding the post of Registrar of Bengal Engineering and Science University, Sibpur. He used to discharge his function under the Control of the Board of Management of the Respondent university. Neither the Board of Management nor the Respondent No. 6 was entrusted with any sovereign function.
24. Black''s Law Dictionary (8th Edn) at page 1267 defines "public office" as under:
a position whose occupant has legal authority to exercise a Government''s sovereign power for a fixed period.
25. The essential elements of a "public office" are:
(i) authority conferred by law.
(ii) Fixed tenure of office.
(iii) Power to exercise some portion of sovereign functions of the Government.
25. One of the key elements of such test was that the officer was to carry out some portions of sovereign functions of the Government. That ingredient was absent in respect of the post of Registrar Bengal Engineering and Science University, Sibpur. Reference may be made to the decision of
76. The notification dated 31-1-2004 clearly states that the appointment is on contract basis and until further orders. While laying down the terms of appointment in its order dated 21-4-2-4,the Government of Karnataka clearly stated that the "term of contractual appointment of Shri B. Srinivasa Reddy shall commence on 1-2-2004 and will be in force until further orders of the Government and this is a temporary appointment". Section 6(1) ofthe Act categorically states that the Managing Director shall holdoffice during the pleasure of the Government. The power and functions of the Board are laid down in Chapter v. of the Act. A reading of the Act clearly shown that neither the Board nor its Managing Director is entrusted with any sovereign function. Blacks. Law Dictionary defines public office as under:
Public office.- Essential Characteristics of ''public office'' are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of Government: key element of such test is that ''officer'' is carrying out sovereign function. Spring V. Constantino. Essential elements to establish public office are: position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity. State v. Taylor.
77. Carrying out sovereign function by the Board and delegation of a portion of sovereign power of the Government to the Managing Director of the Board and some permanency and continuity in the appointment are quintessential features of public office. Every one of these ingredients are absent in the appointment of the Appellant as Managing Director of the Board. This aspect of the matter was completely lost sight of by the High Court.
26. That apart a small section of pubic, namely the students and their guardian were interested as such in the university but that did not bring the office of the Registrar of the Respondent university within the category of offices which could be described as "public Office".
27. Before parting with this case this Court is to consider another issue which has arisen before it. That is whether the appointment of the Respondent No. 6 as registrar of the Respondent university was in breach of statutory provisions of mandatory nature. Indisputably, the Respondent No. 6 was appointed on the basis of the qualification contained in the advertisement No. RA 7607 dated May 8, 2007. In the essential qualifications prescribed for the post in question, comparable experience in research organization industrial establishments was added to the essential qualifications prescribed in the first bye-laws 1993-94 of the Respondent university. The above bye-laws of the Respondent university were inforce by virtue of the provisions of Sub-section (7) of Section 53 of the said Act notwithstanding repeal of bye-laws of the Respondent university at the time of appointment of the Respondent No. 6. But those bye-laws were framed by the Respondent university to govern its internal management or administration. Those may be binding between the persons affected by them, but they did not have the force of a statute. Reference may be may to the decision of
10. We are unable to accept the submission that the bye-laws of a cooperative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-law slaying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws lying down the conditions of service are made and any person enters the employment of a society, those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service. The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing orders are binding between the employers and the employees of the industry governed by those Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute. The jurisdiction which is granted to Industrial Tribunals by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunal have the right even to very contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No. 1 the Tribunal will have to vary the special bye-laws framed by the co-operative Bank does not lead to the inference that the Tribunal would be incompetent to grant the relief''s sought in this reference. In fact, the relief''s could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section61 of the Act.
(Emphasis supplied)
28. In view of the discussions and observations made hereinabove the Respondent No. 6 was neither holding "Public office" nor there was existence of any statutory rules for appointment to the post in question at the material point of time.
29. With regard to consideration of the Respondent No. 6 in the selection process in question inspite of non-filing of application within the prescribed time limit, I find that according to the advertisement under reference, the choice of the selecting authority need not be confined to those who had applied.
30. This Court can not ignore another factual matrix of this case on another aspect of the matter. At the time of consideration of candidature of the Respondent No. 6 for his appointment to the post under reference a draft rule relating appointment to the post in question was pending before the State Government for its approval. The above rule was approved by the State Government after a few months from the date of appointment of the Respondent No. 6. The Respondent No. 6 possessed the essential qualifications prescribed in the above rules. Therefore, the Respondent No. 6 being ousted by Quo Warrantor could be reappointed upon fulfillment of the essential qualifications prescribed in the aforesaid rules. The court should not issue a writ if it would be futile in that view of the matter.
31. In the facts and circumstances of this case the decisions cited by Mr. Ghosh do not help the Petitioners for granting any relief in their favour.
32. In view of the discussions and observations made hereinabove no relief can be granted to the Petitioners on the basis of the applying the decisions relied upon by the Petitioners in view of the distinguishable facts and circumstances.
33. This writ application is, therefore, dismissed.
34. There will be, however, no order as to costs.
35. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
